India’s landmark Supreme Court decision that criminalizing consensual same-sex conduct is unconstitutional is a major victory for human rights and the LGBT people’s rights to privacy and non-discrimination in the world’s second most populous country.

(London)—India’s landmark Supreme Court decision that criminalizing consensual same-sex conduct is unconstitutional is a major victory for human rights and the LGBT people’s rights to privacy and non-discrimination in the world’s second most populous country.

People celebrate the Indian Supreme Court’s decision to strike down a law criminalizing same-sex conduct, in Kolkata, India, September 6, 2018.

“The Supreme Court decision means that at long last same-sex relations are no longer a criminal offense in India,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The court has affirmed that no one should be discriminated against for whom they love or what they do in the privacy of their bedroom.”

The court’s ruling affirmed that lesbian, gay, bisexual and transgender (LGBT) people in India are entitled to the full protection of both India’s constitution and international human rights law, and that laws that treat people as second-class citizens based on their real or perceived sexual orientation have no place in modern India.

The ruling follows a long struggle for the decriminalization of same-sex conduct in India. In 2001, the Naz Foundation (India) Trust, an organization working on HIV/AIDS and sexual health, filed a case before the Delhi High Court, contending that Section 377 violated both the Indian constitution and international human rights law, and that it impeded the organization’s public health outreach. In 2009 the court issued a ruling in support of the petitioners.

But the Supreme Court overturned that decision in 2013, ruling that amending the law was the responsibility of the legislature. The reversal had devastating consequences for LGBT Indians who had come out as a result of the 2009 ruling. While it led to only a few documented arrests, LGBT people in India continued to suffer widespread discrimination, sanctioned by a discriminatory law. They remained vulnerable to violence and extortion, including by the police.

Activists in India filed new petitions asking the Supreme Court to review its ruling. In 2016, the court, after initially refusing to hear the review petitions, admitted the curative petitions reviving the legal battle for the repeal of the law. The petitions were referred to a five-judge Constitution Bench for detailed hearing. In January 2018, after issuing important rights-affirming rulings on privacy and on transgender equality, the court announced that it would revisit the case. In July, a five-judge bench began hearings that included new petitions filed by LGBT people.

The ruling also has significance internationally, Human Rights Watch said. Section 377 of India’s Penal Code, first implemented in 1860, served as a template for similar laws throughout much of the former British empire. Colonial governors elsewhere in Asia and Africa used the language of Section 377 in dozens of statutes criminalizing so-called “unnatural offenses” – generally understood to mean anal sex, or sodomy – while in the Caribbean, the British used different language, imposing laws against “buggery.”

Over 70 countries, including many in the Commonwealth, still criminalize consensual same-sex relations. Kenya and Botswana, both of which inherited versions of the Indian penal code during the colonial period, currently have cases pending before their courts that would also strike down laws outlawing consensual same-sex conduct. Other countries in which courts have struck down sodomy laws in recent years include Trinidad and Tobago (2018), and Belize (2015).

The decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India, Human Rights Watch said. Transgender people in particular, including hijra communities, face discrimination in employment, housing, and health care. A draft law on transgender persons, introduced in 2016, does not go far enough in protecting trans people’s rights to legal recognition according to their gender identity.

“Striking down Section 377 is a momentous step that will resonate around the world in communities that are fighting for equality,” Ganguly said. “But like other countries, India has significant work to do to ensure that the rights of people who have been long marginalized on the basis of their sexual orientation or gender identity are fully protected.”

About

We accelerate success in social campaigns and petition for foundations, grassroots, and non-profit organizations. We help activists start a social movement, collect supporters and fundraising to change society.

To make this site work properly, we sometimes place small data files called cookies on your device. Most big websites do this too.

Accept

Read more

Change Settings

Cookie Box Settings

Cookie Box Settings

Privacy settings

Decide which cookies you want to allow.You can change these settings at any time. However, this can result in some functions no longer being available. For information on deleting the cookies, please consult your browser’s help function.Learn more about the cookies we use: click hereLearn more about our Privacy Policy: click here

With the slider, you can enable or disable different types of cookies:

Block all

Essentials

Functionality

Analytics

Advertising

This website will:

Essential: Remember your cookie permission setting

Essential: Allow session cookies

Essential: Gather information you input into a contact forms, newsletter and other forms across all pages

Essential: Keep track of what you input in shopping cart

Essential: Authenticate that you are logged into your user account

Essential: Remember language version you selected

This website won't:

Remember your login details

Functionality: Remember social media settings

Functionality: Remember selected region and country

Analytics: Keep track of your visited pages and interaction taken

Analytics: Keep track about your location and region based on your IP number

Analytics: Keep track on the time spent on each page

Analytics: Increase the data quality of the statistics functions

Advertising: Tailor information and advertising to your interests based on e.g. the content you have visited before. (Currently we do not use targeting or targeting cookies.

Advertising: Gather personally identifiable information such as name and location

This website will:

Essential: Remember your cookie permission setting

Essential: Allow session cookies

Essential: Gather information you input into a contact forms, newsletter and other forms across all pages

Essential: Keep track of what you input in shopping cart

Essential: Authenticate that you are logged into your user account

Essential: Remember language version you selected

Functionality: Remember social media settings

Functionality: Remember selected region and country

This website won't:

Remember your login details

Analytics: Keep track of your visited pages and interaction taken

Analytics: Keep track about your location and region based on your IP number

Analytics: Keep track on the time spent on each page

Analytics: Increase the data quality of the statistics functions

Advertising: Tailor information and advertising to your interests based on e.g. the content you have visited before. (Currently we do not use targeting or targeting cookies.

Advertising: Gather personally identifiable information such as name and location

This website will:

Essential: Remember your cookie permission setting

Essential: Allow session cookies

Essential: Gather information you input into a contact forms, newsletter and other forms across all pages